Almost everybody wants the Supreme Court to rule on LGBT rights.

By: Robin Shea

September 04, 2018

C'mon, Supreme Court: Settle this one!

As you know if you read this blog regularly, there are three cases involving LGBT rights under Title VII that might make it to the U.S. Supreme Court.

First, we have Bostock v. Clayton County (GA), in which the U.S. Court of Appeals for the Eleventh Circuit held that the plaintiff, a gay man, did not have protection under Title VII. Mr. Bostock wants the Supreme Court to review the decision and make a definitive ruling. 

*To see which states are in which circuits, check our handy guide.

Next, we have EEOC v. R.G. and G.R. Harris Funeral Homes, in which a Detroit-area funeral home terminated Aimee Stephens after she disclosed that she was going to start presenting as a woman. The U.S. Court of Appeals for the Sixth Circuit ruled in favor of the Equal Employment Opportunity Commission and Ms. Stephens, finding that they were entitled to present their Title VII claims to a jury. The funeral home, which is represented by (among others) the Alliance Defending Freedom, has asked the Supreme Court to review the Sixth Circuit decision. 

Interesting wrinkle to this case: The EEOC cannot defend its case at the Supreme Court unless the U.S. Department of Justice allows it. And the DOJ disagrees with the EEOC's position on whether Title VII prohibits LGBT discrimination. (The EEOC is still made up entirely of Obama appointees. President Trump has nominated two Commissioners, but they have not been confirmed.) Presumably as a result of this conflict, the Solicitor General requested an extension of time -- until September 24 -- to respond to the funeral home's petition for cert. That will be interesting.

(Even if the EEOC isn't allowed to participate, the American Civil Liberties Union can proceed on behalf of Ms. Stephens.)

Meanwhile, a number of "friends of the court" have filed briefs in support of the funeral home and SCOTUS review: Jews for Religious Liberty (I was unable to find a website for this organization), the Foundation for Moral Law, and a group led by Public Advocate of the United States, which describes itself as a "non-profit social welfare organization." In addition, 16 states joined in a brief in support of the funeral home: the attorneys general of Nebraska, Alabama, Arkansas, Kansas, Louisiana, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming, and the governors of Kentucky, Maine, and Mississippi. Michigan has apparently chosen to stay out of it.

The third case is Zarda v. Altitude Express, in which the U.S. Court of Appeals for the Second Circuit ruled that the estate of a gay skydiver was entitled to a jury trial on his claims of sexual orientation discrimination under Title VII. The employer, Altitude Express, has asked for Supreme Court review.

As for me, I stand with Mr. Bostock, R.G. and G.R. Harris Funeral Homes, and Altitude Express. I think the Supreme Court needs to define the scope of Title VII's "sex" discrimination provisions as soon as possible. Mr. Bostock summarized the legal issue nicely in his latest brief:

The real question is whether the text of Title VII, as it has been defined and expounded by this court in [Price Waterhouse v. Hopkins, a 1989 case that involved sex stereotyping], and other cases, reaches sex discrimination predicated on an employee's sexual orientation [or gender identity]."

C'mon, Supremes! Rule!

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.